Solicitation and Barratry - Frequently Asked Questions

NEW UPDATES effective September 1, 2013.

Under the Texas Disciplinary Rules of Professional Conduct,
can I be disciplined if I telephone or visit in person with someone
that I know has been arrested or involved in a car accident to
solicit
them as a client?

With certain limited exceptions, the answer is yes. See Rule 7.03(a) concerning telephone and in person
solicitations. Also it would be a Rule violation for a lawyer to have
someone else, including a non-lawyer, solicit clients in this manner
for them. See Rule 8.04(a)(1).

Under the Texas Disciplinary Rules of Professional Conduct,
can I be disciplined if I send a letter to someone that I know has been
arrested or involved in a car accident to solicit them as a
client?

Generally, no, if you follow Rule 7.05 concerning written solicitations and Rule 7.07 concerning filing requirements of written
solicitations. However, also see Rule 8.04(a)(9) which prohibits lawyers from
engaging in conduct that constitutes barratry as defined by the law of
this state. Please note that Penal
Code section 38.12(d)(2) no longer prohibits written communications
to persons who have been arrested or issued a summons or to those
persons’ family members.

Under the Texas Disciplinary Rules of Professional Conduct,
can I be disciplined if I pay someone not licensed to practice law to
solicit clients for me or to refer clients to me?

With certain very limited exceptions, the answer is yes. See Rule 7.03(b). Also, see Rule 7.03(c) which prohibits payments to clients or
anyone else in order to solicit employment. Additionally, accepting
referrals from certain Lawyer Referral Services is also prohibited. See 7.03(e).

Are there other Texas Disciplinary Rules of Professional
Conduct that I should be aware of concerning solicitation of
clients?

Yes, see Rule 7.06 concerning prohibited employment and Rule 7.03 (d) concerning prohibited fee collection.
Lawyers should also be familiar with all of Section VII of the Texas
Disciplinary Rules of Professional Conduct which deals with Information
about Legal Services.

Isn’t there also a section in the Penal Code that
deals with barratry?

I’ve heard something about Penal Code section
38.12(d)(2)(C), which deals with direct-mail solicitation of criminal
defendants, being held unconstitutional. What information can you
provide me on that issue?

Fortunately a recitation of precedent is no longer necessary to
answer this question. Effective September 1, 2013, the criminal
barratry statue was amended and removed the unconstitutional provision
regarding arrestees and persons issued a summons (and their family
members) from Penal
Code section 38.12(d)(2). As a result, criminal defense attorneys
who send direct mail to prospective clients who are arrestees or persons
issued a summons, including those persons’ family members, no longer
need to worry about violating the criminal barratry statute as long as
their written communications comply with Rules 7.05 and 7.07 . The
same is true of the two civil barratry statutes which were also amended
and are discussed in the next section. However, other written
communications sent by lawyers, such as personal injury solicitation,
need to comply with Penal Code 38.12(d)(2) and the proper waiting
period.

Can you provide me with more information on the new civil
laws regarding barratry that went into effect on September 1,
2011?

Government
Code section 82.065 has provisions that deal with the
voidability of legal services contracts when barratry is involved.
Government
Code section 82.0651 creates civil liability with
substantial monetary penalties for lawyers who engage in barratry. These
two statutes are commonly referred to as the civil barratry statutes.
Both statutes were amended on September 1, 2013 to remove references to
written communications to prospective clients under Penal Code 38.12(d).
However, please be aware that Penal Code 38.12(d)(2) still regulates
some types of written solicitations by lawyers to prospective clients.
Consequently, a lawyer could violate Penal Code 38.12(d)(2), but not
incur liability under Government Code sections 82.065 and 82.0651 or
Part VII of the Texas Disciplinary Rules of Professional Conduct.
Although Rule 8.04(a)(9) prohibits a lawyer from engaging in barratry
as defined by Texas law, lawyers should be familiar with these three
areas of liability: criminal barratry, civil barratry and disciplinary
rules. But thanks to the recent amendments mentioned above, these
provisions affecting criminal defense lawyers, in particular, have
become easier to apply.

This material is intended for educational and informational purposes
only and intended only to address disciplinary issues under the
authority of the State Bar of Texas. It does not constitute legal
advice and no liability is assumed in connection with the information
contained herein. The above information does not create an
attorney-client relationship and is not binding upon the State Bar of
Texas. Additional ethics inquiries can be made to the Ethics Helpline at
800-532-3947.